Legal experts have been busy scrutinising draft amendments to the Criminal Procedure Law, but the recently released draft mental health legislation also deserves attention in the context of protecting human rights.
First deliberated in 1985, a draft was finally approved in principle by Premier Wen Jiabao and the State Council in the middle of last month. That clears the way for the law to be tabled before the National People's Congress after 26 years, more than 20 drafts and many calls to fill the gaping legal black hole of protecting mental health patients' rights.
While the exact wording is not available, a draft released for brief public consultation in June has formed the basis for discussion. Many legal experts are hoping for more changes and procedural details, especially regarding the involuntary committal of mental patients.
'Being made a mental patient' has become a worrying phenomenon on the mainland in recent years, with one incident after another of mentally sound citizens being locked up in asylums hitting the headlines. Some were committed by family members involved in financial or other disputes with the 'patient', while others were petitioners or 'troublemakers' in the eyes of local authorities who were taken to asylums by police officers, often without the knowledge of their family.
This means that under current law a person can be deprived of their freedom for an indefinite period in a mental institution through a simple police order or by an ill-intentioned family member. All it takes to involuntarily commit a mental patient is the medical assessment of one facility, which answers to whoever pays its bills. Once a person is declared a mental patient, they lose all rights to protest and won't be let out until police or their 'guardian', normally the family member who checked them into hospital, agrees to it.
Meanwhile, at the other end of the spectrum of problems in the mainland's mental health system, there are patients who really need medical care but are not getting it due to poverty, insufficient medical facilities and the traditional lack of attention to mental health, even extending to a taboo on talking about it. Mentally ill people who break the law also find the defence of insanity very difficult to invoke as only a judge or prosecutor can initiate a mental capability assessment, not the defendant.
The draft Mental Health Law is clear in its intention to tackle the problem of 'being made a mental patient' and has been applauded for doing so by legal experts. The draft makes it a crime for anyone to put a mentally sound person into a mental facility, or illegally prevent a patient from leaving such a facility.
